Criminal keeps £4.5m as barristers refuse to take case

A convicted drugs criminal has escaped an order to have up to £4.5 million of
his assets confiscated because no legal aid barrister would take on the case.

7:26AM BST 06 May 2008

More than 30 barristers from London, Leeds and Sheffield were approached to represent the offender, but refused because they felt the new fixed-rate legal aid fees of £175.25 per day does not justify the complex workload that would be involved.

The case would have involved 6,586 pages of documents and a total of 4,548 transactions to prepare for an estimated six-week hearing.

The offender, who has served a nine-month sentence for two drugs convictions, could not pay for the legal fees himself because his assets had been frozen.

Referred to only as P in the confiscation hearing, the man had to act for himself and won an appeal for the order to be set aside because he did not have proper legal representation.

The Crown Prosecution Service estimated that his criminal lifestyle had netted him £4.5 million, but were seeking to confiscate £1.5 million in the first instance.

His solicitor, Jansen Versfeld, tried but failed to find a barrister to represent P in court, according to the Times newspaper.

“Because of the very low rate of pay for these hearings, £175.25 per day, and the amount of work and complexity involved, with no payment for preparation, none could undertake to do it,” he said.

Judge David Mole QC, sitting at Harrow Crown Court, accepted that the man could not have a fair trial as legal aid “does not provide sufficient funding to pay for the necessary representation”.

The judge suggested that a less qualified barrister could take the case on but Mr Versfeld pointed out that it was contrary to the Bar's code of conduct for a barrister to accept instructions on a case that he or she was not experienced in.

The case has highlighted the inadequacy of funding regulations, introduced in October 2005, which introduced a fixed scale of fees.

It also exposed the “draconian” provisions of the Proceeds of Crime Act 2002 under which offenders convicted of a drugs-related offence faced having assets seized that could in theory be counted as gained from a “criminal lifestyle”.

“So although this defendant was convicted of offences only involving a few hundred pounds’ worth of cannabis, he found himself at risk of losing £4.5 million worth of assets – with the burden on him to prove that they were not ill-gotten gains. On top of that, he was prohibited from using those assets for his own defence," Mr Versfeld said.